What Is a Divisional Patent?
There are three main types of patents. Utility, design and plant patents are issued depending on the nature of the invention. A divisional patent is based on a previous patent application for one of these main patent types. The divisional patent carves out new and unique applications for an invention -- it divides the separate uses of a single invention into separate patents. Many divisional patents are filed in response to restrictions by the United States Patent and Trademark Office (USPTO), which is responsible for examining all patent applications.
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Significance
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U.S. law allows one invention per patent. A major component of a patent is its specific use or uses. An inventor usually tries to make a patent as broad as possible to protect against imitations. If a patent application is too broad, however, especially if it claims to have uses in a variety of contexts, the patent office is likely to deny the patent application. In that case, the inventor must significantly narrow his claims.
Identification
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A divisional patent includes new claims for an invention that has already been patented or for which patent is pending. For examination purposes, the USPTO treats a divisional patent application as a new, separate invention. Through one or more divisional patents, an inventor can patent a variety of different uses for a single invention. But, only the inventor(s) of the original invention can file a divisional patent.
If, for example, an inventor created a single device that makes ice for use in the home, but also, through condensation, collects humidity in the air as drinkable water, these very separate uses for the same invention would probably have to be patented separately. -
Features
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A divisional patent application should contain identical drawings and specifications as the original application, which is called the parent application. The only aspect that should differ is the claims. A single invention can be patented as many times as necessary to cover all of its legitimately patentable uses. A new filing fee will apply each time, and each divisional patent will undergo the same examination process as a new application.
Time Frame
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In addition to protecting a variety of contexts in which a single invention can be used, a divisional patent also preserves the filing date of the parent application. This can be crucial if the patent is contested, because a patent filing date is well-documented evidence of an inventor's act of creation. When determining whether an invention can be patented, the earliest demonstrable date of invention has priority. By using the earlier filing date of the parent application, the subject of a divisional patent is better protected from imitation. Even though a divisional patent application is treated like a separate invention, the patent office respects the fact that the invention was created in all of its uses at the time of the first filing.
Considerations
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In order to qualify as a divisional patent, the application must have the same or fewer inventors as the original application. An oath or affirmation must be filed requesting the omission of certain inventors named on the original application, if applicable. The divisional application must be submitted during the pendency of the parent patent, which means it must be filed before the parent application is denied by the patent office (if applicable) or accepted. The length of this period varies, but could be six months or more. The divisional application must also specifically reference the original application.
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References
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- Photo Credit U.S. Department of Commerce
